Issue Advocacy Ads May Run During an Election, Three-Judge Court Rules

A divided three-judge court ruled yesterday that ads advocating for an issue and mentioning candidates can run during an election, creating a loophole in the law that sought to control the power of big money in elections.

In a 2 to 1 ruling, the court found that the government had no compelling justification to regulate television ads such as the ones Wisconsin Right to Life Inc. broadcast in July 2004, which advocated stopping congressional filibusters against President Bush's judicial nominees.

The ads ran when Sen. Russell Feingold (D-Wis.) was running for reelection and had opposed some of Bush's nominees. The ads made no mention of Feingold's record, instead urging Wisconsin residents to call their senators to express their dissatisfaction.

U.S. District Judge Richard J. Leon, joined by U.S. Court of Appeals Judge David B. Sentelle, agreed with Wisconsin Right to Life that ads such as theirs merely advocate a position without trying to criticize the record of a particular candidate.

The ads are not targeted "electioneering communications" and should not be burdened by the reporting requirements of the federal campaign finance law, Leon wrote.

The ruling was a key victory for Wisconsin Right to Life, which had sued the Federal Election Commission on the grounds that it had infringed on the group's constitutional right to free speech.

The loser was the FEC, which had argued that the Wisconsin Right to Life ads were election ads, and that the antiabortion group had to follow the finance limits and reporting rules called for under the Bipartisan Campaign Reform Act. The 2002 amendments to federal campaign finance law are better known as the McCain-Feingold Act, named for Feingold and his Senate co-sponsor, John McCain (R-Ariz.).

In a lengthy dissent, Judge Robert W. Roberts wrote that the majority's approach was too simplistic in reviewing just the language of the ads, even though there is a significant factual dispute about their purpose. He argued that the ads' intent is critical to determining whether the FEC should be regulating them.

First, were the Wisconsin Right to Life ads truly meant to advocate for an issue, as the group's lawyer asserts, Roberts asked, or did the sponsors intend to influence the election and lead voters to cast votes against Feingold? Also, Roberts wrote, no one has definitively addressed the FEC's argument that the ads were sham ads, "designed and timed to set up a legal challenge" and create a loophole in the McCain-Feingold law.

Carl Tobias, a University of Richmond law professor, said the ruling could "create a major loophole in which all groups have to do is say they are running advocacy-issue ads and they can avoid the statute."

FEC Commissioner David M. Mason said in an interview that the six-member commission has not decided whether to appeal the ruling to the Supreme Court, but he cautioned about predicting what campaign finance limits will govern in the 2008 presidential elections. A similar case involving a Maine group is still to be decided, and the Supreme Court could have a different view.

"It's very unlikely this ruling will affect what the law will be a year from now," Mason said.